PRESTIGE CAR WASH, INC. and STOUGHTON CAR WASH GROUP, LLC v. WILLIAM ANGELOS, JAMES BARRON, RYVINE JARDIN, MICHAEL SAMMARCO and JOSEPH SCARDINO, Members of the STOUGHTON PLANNING BOARD and GC CF NEW ENGLAND, LLC.

The present action was initiated by Prestige Car Wash, Inc. (Prestige), and Stoughton Car Wash Group, LLC (Stoughton Car Wash Group), by Verified Complaint filed April 1, 2014. Pursuant to G. L. c. 40A § 17, Plaintiffs appeal a decision of the Stoughton Planning Board (Planning Board) granting GC CF New England, LLC (GC) site plan approval for a convenience store and accessory gasoline station to be constructed at 590-594 Washington Street, Stoughton. GC filed a motion to dismiss Plaintiffs’ complaint on April 22, 2014, pursuant to Mass. R. Civ. P. 12(b)(6), for failure to state a claim for which relief can be granted, and alternatively, pursuant to Mass. R. Civ. P. 12(b)(1), for lack of standing. All counsel appeared for the hearing on GC’s motions on June 12, 2014. Counsel for the Planning Board did not participate in GC’s motion, but was present at the hearing, and indicated assent to GC’s motion pursuant to Mass. R. Civ. P. 12(b)(6). She took no position on GC’s motion pursuant to Mass. R. Civ. P. 12(b)(1).

Plaintiff Prestige holds a special permit from the Board of Appeals (ZBA), and site plan approval from the Planning Board to operate a gasoline station, car wash, and convenience store at 472 Washington Street, Stoughton, a property which is owned by Plaintiff Stoughton Car Wash Group. As of the date this case commenced, Prestige expected its business to be in operation around June 2014.

As of January 2014, Defendant GC owned and operated a Cumberland Farms convenience store and gasoline station at 499 Washington Street, Stoughton. Seeking to relocate its business, GC applied for a special permit to operate four gas pumps as an accessory use to a proposed convenience store at 590-594 Washington Street. [Note 1] The special permit application was approved by the ZBA which filed its decision with the Town Clerk January 24, 2014. The special permit approval was not appealed. A decision by the Planning Board approving GC’s site plan application was filed with the Town Clerk March 13, 2014.

Plaintiffs timely filed this appeal from the site plan approval claiming that the Planning Board was obligated, before approving GC’s site plan, to independently determine that the proposed use was consistent with the Stoughton Zoning By-Law (By-Law), and that the Planning Board failed to do so. Plaintiffs argue that, had the Planning Board taken such action, it would have discovered that the ZBA erroneously approved GC’s special permit application. Plaintiffs seek the annulment of the Planning Board’s approval of GC’s site plan. Plaintiffs contend that Prestige, as a competitor to GC, has standing as a person aggrieved by the decision of the Planning Board approving GC’s site plan. Plaintiffs further contend that Stoughton Car Wash Group has standing to challenge the Planning Board’s decision as the owner of land which stands to depreciate in value as a result of the approval of GC’s site plan. For the reasons set forth below, this court holds that Defendant GC’s Motion to Dismiss pursuant to Mass. R. Civ. P. 12(b)(6) and Mass. R. Civ. P. 12(b)(1) is ALLOWED.

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In considering a motion to dismiss under Mass. R. Civ. P. 12(b)(6), “the allegations of the complaint, as well as such inferences as may be drawn therefrom in the plaintiff’s favor, are to be taken as true.” Nader v. Citron, 372 Mass. 96 , 98 (1977). In Iannacchio v. Ford Motor Co., 451 Mass. 623 , 636 (2008), the Supreme Judicial Court (SJC) adopted the federal standard for pleadings, holding:

“Factual allegations must be enough to raise a right to relief above the speculative level… [based] on the assumption that all the allegations in the complaint are true (even if doubtful in fact)…”

What is required at the pleading stage are factual “allegations plausibly suggesting (not merely consistent with)” an entitlement to relief, in order to “reflect[] the threshold requirement… that the ‘plain statement’ possess enough heft to ‘sho[w] that the pleader is entitled to relief.’”

(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 557). Additionally, a defendant may properly challenge a plaintiff’s standing to raise a claim by bringing a motion to dismiss under either Mass. R. Civ. P. 12(b)(1) or (6). Ginther v. Comm’r of Ins., 427 Mass. 319 , 322 (1998). Standing is treated as a matter of subject matter jurisdiction. Id.

*** The record in this case consists of Plaintiffs’ Verified Complaint and three attached exhibits: Exhibit A is a copy of Article XIV (previously “Section 1,” re-codified and adopted June 23, 2004) of the By-Law, and pertains to site plan review; Exhibit B is a certified copy of the Planning Board’s March 13, 2014 decision granting GC’s application for site plan approval; and Exhibit C is a copy of the ZBA’s January 23, 2014 decision granting GC’s application for a special permit. The entire By-Law is attached to Defendant’s memorandum in support if its motion to dismiss and is part of the record.

The Cumberland Farms convenience store and gas pumps GC proposes to build at 590- 594 Washington Street would be situated less than one quarter mile from – and on the same side of Washington Street as – the gas station, car wash, and convenience store operated by Prestige. There is another gas station, which is operated by GC at 499 Washington Street. As a condition of approval of its special permit application, GC agreed that it would close its existing Cumberland Farms convenience store and gas pumps located at 499 Washington Street. GC indicated to the ZBA that it intends to sell 499 Washington Street subsequent to the opening of its new store, and agreed that a restriction would be recorded along with the deed to any new purchaser that would restrict the property from being used in the future as a convenience store and/or for gasoline storage with fuel storage and pumping facilities. [Note 2]

Plaintiffs argue that pursuant to By-law § 200-82, the Planning Board, as part of its site plan review process, was required to examine whether GC’s proposal to install four gas pumps at 590-594 Washington Street as an accessory use to a convenience store is consistent with the use provisions of the By-Law. Plaintiffs cite to Section V of the By-Law, which stipulates that “accessory gas storage and pumping facilities for use by the principal use and not as a separate business” may be allowed by special permit in a General Business District, and to Section II of the By-Law, which defines an accessory use as “[a] use incidental and subordinate to the principal use of a structure or lot.” This reading of the By-Law is not supported by the language of the various applicable sections taken together as part of a cohesive whole. Whereas many municipalities delegate both special permit and site plan review to their respective boards of appeals or planning boards, Stoughton quite clearly divides the two tasks. Sections X(I) and (K) of the By-Law designate the ZBA as Stoughton’s Special Permit Granting Authority; under (K), the ZBA “shall have the power to hear and decide on applications for special permits and exceptions.” Pursuant to By-Law § 200-83 (previously “Section 2.1”), buildings of certain specifications, which are to be constructed, “shall be subject to Site Plan Approval by the Planning Board.” Thus, the Planning Board was obliged only to satisfy itself that the ZBA had granted the necessary relief (in this case, a special permit for the accessory gas pumps). That is exactly what the Planning Board did in this case, before it proceeded to review the proposal within its jurisdiction as the reviewing body for site plan approval.

Plaintiffs argue that the language of § 200-82 leaves “no room for the exercise of discretion” by the Planning Board, and that the language obligated the Planning Board to make its own assessment of the legality of the uses proposed. Under § 200-82, the purpose of site plan approval is to protect the health, safety, convenience, and welfare of Stoughton residents by “providing a comprehensive review of the land and development plans submitted to the Town for approval to ensure that the following conditions have been met: (A) The location of buildings, uses and other site development are properly and legally located on a site as prescribed by the Zoning By-Law…” (emphasis added). The court is not swayed by Plaintiffs’ interpretation of § 200-82 of the By-Law, nor its conclusions. Site plan approval has long been recognized as a permissible regulatory tool for aspects of a proposed development having to do with parking, traffic mitigation, noise reduction, and the creation of conditions that may be deemed necessary to protect a given neighborhood and the public from unreasonable harm. See Y.D. Dugout, Inc. v. Bd. of Appeals of Canton, 357 Mass. 25 , 31, 32 (1970). In communities which utilize site plan review, the process “has to do with regulation of permitted uses, not their prohibition, as would be the case with a special permit or a variance.” Osberg v. Planning Bd., 44 Mass. App. Ct. 56 , 57 (1997) (quoting Bowen v. Bd. of Appeals of Franklin, 36 Mass. App. Ct. 954 , 955 (1994). [Note 3] Once GC had obtained its special permit, all that was left for the Planning Board was ensuring that the proposed development of the site served the needs of the public, as detailed in Section 200-82.

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More fundamentally, this court is not satisfied that Prestige and Stoughton Car Wash Group have standing to appeal the Planning Board’s approval of GC’s site plan application. Plaintiffs state that Prestige is a “person aggrieved” by virtue of an anticipated competitive injury if GC’s proposed Cumberland Farms convenience store and gas pumps are allowed. Plaintiffs argue that the By-Law allows for such regulation of competition, as evidenced by the ZBA conditioning its approval of GC’s special permit on the closure of GC’s existing gas station at 499 Washington Street and assurances from GC that any future sale of the property would include a deed restriction against use as a convenience store and/or gas station.

Under G.L. c. 40A § 17, only “persons aggrieved” have standing to appeal a decision of a permitting board. Sweenie v. A.L. Prime Energy Consultants, 451 Mass. 539 , 542 n.9 (2008). Neither plaintiff is an individual or entity who was entitled to notice of board hearings related to GC’s special permit application pursuant to G. L. c. 40A § 11, and neither claims to benefit from the initial presumption of standing bestowed on such individuals. See Standerwick v. Zoning Bd. of Andover, 447 Mass. 20 , 32-33 (2006). While the term “persons aggrieved” is not to be narrowly construed, the plaintiffs’ injuries must be more than speculative and must be particularized. Bell v. Zoning Bd. of Appeals of Gloucester, 429 Mass. 551 , 554 (1999). This court is guided by Circle Lounge & Grille, Inc. v. Bd. of Appeal of Boston, 324 Mass. 427 , 429- 31 (1949), in which the SJC established that the primary purpose of zoning with reference to land use is the preservation in the public interest of certain neighborhoods against uses which are believed to be deleterious to such neighborhoods, and that zoning regulations do not purport to shield businesses from competition. (“We cannot believe that a person is aggrieved within the meaning of the statute… merely because a variance, even if improvidently granted, will increase competition in business.”)

Alternatively, Plaintiffs argue that Stoughton Car Wash Group, as owner of 472 Washington Street, has standing to appeal the Planning Board’s decision because the approval of GC’s site plan application will result in a decline in the value of its property. However, the SJC held in Standerwick that a claim of standing on the basis of diminution in property value must be derivative of or related to a cognizable interest protected by the applicable zoning scheme; it is the opinion of the court that Plaintiffs’ claim here is not related to such an interest. See 447 Mass. at 31-32.

Based on the foregoing, it is

ORDERED that Defendant’s Motion to Dismiss under Mass. R. Civ. P. 12(b)(1) for lack of standing, and under Mass. R. Civ. P. 12(b)(6) for failure to state a claim for which relief may be granted, hereby is ALLOWED.

SO ORDERED.